United States v. Driver

ORDER DENYING MOTION FOR SUMMARY JUDGMENT, GRANTING
MOTION FOR EXTENSION OF TIME AND DENYING MOTION TO MODIFY
CONDITIONS OF SUPERVISED RELEASE

THOMAS
L. LUDINGTON, UNITED STATES DISTRICT JUDGE

On May
21, 2012, Defendant James R. Driver was found guilty by a
jury of one count of possessing child pornography. ECF No.
46. Driver was sentenced to 60 months imprisonment. ECF No.
52. He was also ordered to comply with the following special
condition of supervised release:

The defendant shall not purchase, sell, view, or possess
images, in any form of media or live venue that depict
pornography, sexually explicit conduct, child erotica, or
child nudity. The defendant shall not patronize any place
where such material or entertainment is available.

Id. at 4.

On July
1, 2016, Driver filed a motion to modify that condition of
his supervised release. ECF No. 59. The Court directed a
response from the Government. ECF No. 60. However, because
the government attorneys who had been handling the case were
no longer receiving electronic alerts when a document was
filed on the docket, the Government did not receive the
Court's order. On September 16, 2016, Driver filed a
motion, styled “Motion for Summary Judgment, ”
which reiterated Driver's requests for modification of
the challenged condition. ECF No. 61.The Court again directed
a response, this time manually serving the order on the
Government. On October 14, 2016, the Government filed a
motion requesting an extension of time to file a response
pursuant to the Court's order. ECF. No. 64. Later on the
same day, the Government's response was filed. ECF No.
65. Although the Government's response was filed one day
after the deadline, the Court finds that any delay was
harmless and accepts the response as filed. Accordingly, the
Government's motion for an extension of time will be
granted.

Driver
argues that the challenged condition is overbroad. He asserts
that the condition deprives the Defendant of more liberty
than is reasonably necessary to fulfill the goals of his
supervised release.” Mot. Modify at 1-2, ECF No. 59.
According to Driver, the condition “affects substantial
First Amendment rights” because it would “ban the
defendant from medical dictionaries that may include child
nudity, art that may depict child nudity or sexually explicit
conduct, periodicals (Art Forum, Digital Photography,
National Geographic, etc.) that may include child nudity or
sexually explicit conduct, a huge quantity of television
programs and movies that may include sexually explicit
conduct, etc.” Id. at 2.

Pursuant
to 18 U.S.C. § 3583(e),

The court may, after considering the factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),
(a)(5), (a)(6), and (a)(7) ... modify ... the conditions of
supervised release, at any time prior to the expiration or
termination of the term of supervised release, pursuant to
the provisions of the Federal Rules of Criminal Procedure
relating to the modification of probation and the provisions
applicable to the initial setting of the terms and conditions
of post-release supervision.

§ 3583(e)(2).

Section
3553(a)(1) directs the court to consider “the nature
and circumstances of the offense and the history and
characteristics of the defendant.” Section
3553(a)(2)(B) addresses the need to adequately deter criminal
conduct, while Section 3553(a)(2)(C) focuses on the need to
protect the public from “further crimes of the
defendant.” Section 3553(a)(2)(D) directs the court to
consider the need “to provide the defendant with needed
educational or vocational training.” “The court
may also consider the kinds of sentence, the sentencing range
established for the applicable category of offense, the
applicable guidelines, policy statements, or amendments
issued by the U.S. Sentencing Commission, the need to avoid
unwarranted sentence disparities, and the need to provide
restitution to victims.” United States v.
Minor, 440 F. App'x 479, 482 (6th Cir. 2011).
Modification is permitted to respond to changed circumstances
or to promote effective supervision. United States v.
Neal, 810 F.3d 512, 516-17 (7th Cir. 2016).

Driver
is challenging the condition based on, in part, U.S. v.
Borders. 489 F. App'x 858, 863 (6th Cir. 2012). In
Borders, the Sixth Circuit invalidated the following
special conditions: “The defendant shall not view,
listen to, or possess anything sexually explicit or
suggestive.” Id. The Sixth Circuit held that
the “words ‘or suggestive' render that aspect
of the special condition plain error” because that
broad language would cover a “huge quantity of
literature, music, and other media.” Id.
However, the special condition that Driver challenges does
not include the “or suggestive” language. Rather,
it focuses on “pornography, sexually explicit conduct,
child erotica, or child nudity.” That limited focus
dramatically decreases the quantity of literature that might
be included under the prohibition.

The
Sixth Circuit has held that special conditions banning
“pornography” and “sexually explicit”
materials are not overbroad. United States v. Zobel,
696 F.3d 558, 576 (6th Cir. 2012). See also United States
v. Lantz, 443 F. App'x 135, 141 (6th Cir. 2011)
(noting that, although there is a circuit split on the
question, the Sixth Circuit has not specifically addressed
whether a ban on all pornography is impermissibly vague). In
fact, Driver's condition is even more constitutionally
justified than the condition in Zobel, because,
unlike Zobel, Driver was convicted of a child pornography
offense, which is “the paradigmatic case in which these
bans are imposed.” 696 F.3d at 576.

Bans on
explicit material involving adults raise First Amendment
implications and thus are subject to “careful
review.” Id. at 576 (quoting United States
v. Ritter, 118 F.3d 502, 504 (6th Cir. 1997)). But such
bans are generally upheld as long as they “are
‘primarily designed to meet the ends of rehabilitation
and protection of the public.'” Id. Driver
possessed over 1200 images of child pornography, including
violent child pornography. Given the extent and seriousness
of his relationship to child pornography, the condition,
which will only last for five years, was reasonably tailored
to the goals of supervised release. The Court believes that
Driver's rehabilitation will be best served by completely
avoiding all pornography and sexually explicit conduct. The
condition may inconvenience or frustrate Driver, but the
Court believes that Driver's compliance with the
condition for the five years he will be on supervised release
may serve as a deterrent to future sexual criminal activity.

Given
the Sixth Circuit precedent which upheld the imposition of
functionally identical conditions and the clear nexus between
Driver's offense and the condition, the Court declines ...

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